State of Minnesota, Respondent, vs. Michael John Deck, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-02-1090

 

State of Minnesota,

Respondent,

 

vs.

 

Michael John Deck,

Appellant.

 

Filed May 6, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Cass County District Court

File No. K4011038

 

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Earl E. Maus, Cass County Attorney, Cass County Courthouse, 300 Minnesota Avenue, P.O. Box 3000, Walker, MN 56484-3000 (for respondent)

 

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

 

Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

Contending that there was no probable cause for the warrant that allowed the police to search appellant's trailer home and garage, appellant moved the district court to suppress drugs found there.  After the court denied the motion, appellant waived his right to a jury trial and submitted the case to the court for a decision on stipulated facts.  The court found appellant guilty.  On appeal, appellant challenges the suppression order, arguing that the warrant was defective.  Because there was probable cause for the search and the warrant was proper, we affirm.

FACTS

            On October 30, 2000, special agent Chad Museus, a Bemidji police officer and member of the Paul Bunyan Drug Task Force, applied to the district court for a warrant to search appellant Michael Deck's trailer home and garage for controlled substances and drug paraphernalia.

To establish probable cause for the warrant, Museus related in his affidavit that authorities suspected Deck of drug dealing when they observed a high volume of traffic in and out of Deck's residence beginning in August 2000.  On October 28, 2000, special agent Thomas Ploof, who was from another drug task force, told Museus about the arrest of a confidential informant (CI-1).  CI-1 was arrested for theft of anhydrous ammonia that he said was to be used by Mario Rodrigues in making methamphetamine and that Rodrigues was manufacturing methamphetamine at Deck's residence.

CI-1 stated that Rodrigues learned to make methamphetamine in Sherri Nurnberger's home from her boyfriend, a man named Bob, with an outstanding arrest warrant from Missouri.  A second confidential informant (CI-2), who had given accurate information to authorities in the past, told the county deputy essentially the same thing.  And Museus learned that someone driving a car registered to Nurnberger had made large purchases of Sudafed over a two-day period in August.

Special agent Ploof also told Museus that he was able to verify the accuracy of the information about the location of Nurnberger's residence, the name of her boyfriend living there, the fact that her boyfriend had an outstanding Missouri arrest warrant, and the Sudafed purchases.  Museus was able to confirm the directions CI-1 gave to Deck's residence and learned that both Rodrigues and Deck had criminal records for drug crimes.

On the information in Museus's affidavit, the district court found probable cause and issued the search warrant.  When the police searched Deck's premises, they found marijuana and methamphetamine.  The parties do not dispute the facts.  Deck contends the facts do not show probable cause for a search warrant.

D E C I S I O N

A search warrant may be issued only upon a finding of probable cause.  U.S. Const. Amend. IV; Minn. Const. art. I, § 10; Minn. Stat. § 626.08 (2000).  This court provides a limited review of a district court's probable-cause determination and gives great deference to the issuing court.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985). 

Probable cause for a search warrant cannot be based upon vague and uncertain information.  State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998).  Only the information presented in the affidavit in support of the search-warrant application may be considered in determining whether probable cause exists.  State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998).  However, each component of the affidavit is to be viewed together, not in isolation.  State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990).  And a marginal or doubtful case should be resolved in favor of finding probable cause and issuing a search warrant.  Id.

In reviewing the district court's determination of probable cause for the issuance of a search warrant, this court must ensure that there was a substantial basis to conclude that probable cause existed.  State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001).  The supreme court has adopted a totality-of-the-circumstances test "[t]o determine whether the issuing court had a substantial basis for finding probable cause" for the search warrant.  Souto, 578 N.W.2d at 747.  Under the totality-of-the-circumstances test, the issuing court must

make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

 

Wiley, 366 N.W.2d at 268 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).  Factors that support the probability that evidence will be found at the place searched include: (1) the reliability of the source of information, (2) a link between the crime and the place to be searched, and (3) the freshness of the information.  Souto, 578 N.W.2d at 747.

            Deck argues that the search warrant did not establish probable cause because the search-warrant application and supporting affidavit: (1) failed to establish CI-1's reliability; (2) failed to establish a nexus between the alleged criminal activity and Deck's property; and (3) contained stale information.

Reliability of CIs

Deck contends that the application did not establish CI-1's current or past reliability and that the police corroboration consisted of facts that any person could have established.  He also argues that the application did not indicate whether the information was truly against CI-1's penal interest.

When an affidavit includes information provided by an informant, the knowledge and reliability of the informant must be demonstrated under the totality of the circumstances.  Wiley, 366 N.W.2d at 268.  Here, there were two confidential informants.   CI-1, who was arrested for the theft of anhydrous ammonia, provided special agent Ploof with personal knowledge of information that he purchased the anhydrous ammonia for Rodrigues's methamphetamine lab and that Rodrigues was currently making methamphetamine in Deck's garage.  CI-1 gave specific directions to and a detailed description of Deck's garage.  CI-1 also gave special agent Ploof specific information about how he knew Rodrigues. 

Museus independently verified some of CI-1's information regarding Rodrigues from CI-2, a known reliable informant, who provided the local county deputy with the information.  The county deputy also corroborated through CI-2 the information regarding Rodrigues's methamphetamine manufacture.  CI-2's corroboration thus lent credibility to CI-1's information.  See id. at 269 (noting that corroboration of address and parked vehicle was not corroboration of a key detail, but that the corroboration lent credence to a tip from an informant whom the police had used successfully in the past). 

In addition, CI-2 corroborated CI-1's statements regarding Nurnberger's "boyfriend named Bob," who had an arrest warrant in Missouri.  Special agent Ploof verified the arrest-warrant information and also confirmed that Rodrigues had a criminal record for drug crimes.  "An informant's reliability may be established by sufficient police corroboration of the information supplied * * * ."  Ward, 580 N.W.2d at 71 (citation omitted).  Based on a chain of verifiable information, CI-1's current reliability and credibility were established.

Nexus

            Minnesota requires

a direct connection, or nexus, between the alleged crime and the particular place to be searched, particularly in cases involving the search of a residence for evidence of drug activity.

 

Souto, 578 N.W.2d at 747-48.  Elements bearing on the probability that evidence of drug activity will be found in a particular location "include information linking the crime to the place to be searched and the freshness of the information."  Id. at 747.  Where there is direct information to connect an item to a location, the nexus between the crime and place is clear.  See State v. Cavegn, 356 N.W.2d 671, 674 (Minn. 1984) (stating that "objects-place nexus" is clearer that drugs would be found in an apartment where there is direct information that a drug sale actually occurred there).

Deck argues that the search-warrant application failed to establish a nexus between Deck's property and the crime of drug manufacturing.  He claims that the only nexus was CI-1's conclusory statement that Rodrigues was manufacturing methamphetamine in his garage and that there was no information to show how CI-1 had this knowledge.

            An affiant's conclusory statement that provides no clue as to the source of the information or manner in which it was obtained diminishes its value in the probable cause determination.  State v. Doyle, 336 N.W.2d 247, 251 (Minn. 1983).  Also, probable cause cannot be established by affidavits that are purely conclusory without detailing any underlying circumstances upon which that belief is based.  State v. Anderson, 439 N.W.2d 422, 425 (Minn. App. 1989), review denied (Minn. June 21, 1989).

            In this case, however, there is a nexus between the illegal drug activity and Deck's crime.  This information is based on CI-1's statements that he purchased anhydrous ammonia for Rodrigues and that Rodrigues was manufacturing methamphetamine in Deck's garage.  CI-1 provided many details about how he knew Rodrigues and about other information relating to Deck, including a description of his garage.  These details provide the underlying circumstances about CI-1's knowledge of the illegal drug activities in Deck's garage.  Rodrigues's drug manufacturing was also independently confirmed by CI-2.  The fact that drug manufacturing was going on in Deck's garage and that CI-1 had purchased the anhydrous ammonia specifically for Rodrigues made it likely that illegal drugs and their manufacture would be discovered in Deck's garage.  When the information in the affidavit is viewed as a whole, there is a nexus between Deck's garage and the illegal drug activity.  See McCloskey, 453 N.W.2d at 703 (stating that each component of the affidavit is to be viewed together, not in isolation).

Staleness

Finally, Deck argues that the information provided in the October 30, 2000, search-warrant application is stale.  He contends that the only specific information concerned events occurring in August 2000.

A stale factual basis may invalidate a search warrant.  Souto, 578 N.W.2d at 749-50.  The greater the time lapse between the facts as stated in the affidavit and the search-warrant application, the more likely the information is stale.  Id. at 750.  In determining whether certain items may be found at the present time, the district court "must make a common-sense determination based on practical considerations of everyday life and the individual circumstances of each case."  Ward, 580 N.W.2d at 72 (citations omitted).  Factors in determining whether information is stale include whether there is any indication of ongoing criminal activity, whether the nature of the items sought are innocuous or incriminating, whether the items are easily disposable or transferable, and whether the items are of enduring utility.  State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990).

            Here, the information in the search-warrant application specifically stated that CI-1 had stolen anhydrous ammonia for Rodrigues's methamphetamine lab and that Rodrigues was operating such a lab in Deck's garage.  CI-1 was arrested, and he provided  special agent Ploof with the facts in the search-warrant application only two days before the warrant was signed and executed.  CI-1 stated that the manufacture of methamphetamine was currently going on in Deck's garage.  The information dating to August 2000 appears to be background facts used to establish CI-1's credibility and reliability.  The August 2000 activity (that of a voluminous Sudafed purchase) relates to Nurnberger's boyfriend "Bob" and not to Deck.  In this context, the information that Rodrigues is in the process of manufacturing methamphetamine in Deck's garage is not stale.

            Under the totality of the circumstances in this case, where the facts set forth in the affidavit establish that CI-1 was reliable and credible and that the alleged manufacture of methamphetamine was currently taking place in Deck's garage, the district court properly concluded that probable cause for a search warrant existed. 

Affirmed.